State v. Strieby

BENCH, Judge

(concurring and dissenting):

I fully concur in the main opinion’s conclusion that the State presented sufficient *102evidence to establish a prima facie case of manslaughter. I dissent from the conclusion that the guilty verdict is contrary to the clear weight of the evidence.

The main opinion correctly sets forth our standard of review. In order to upset the trial court’s verdict, we must hold that the court’s findings are “clearly erroneous.” See State v. Walker, 743 P.2d 191, 193 (Utah 1987). Although perhaps less deferential than the standard applied in jury trials, we should regard the findings as accurate unless the evidence clearly shows they are in error. See generally Sweeney Land Company v. Kimball, 786 P.2d 760 (Utah 1990). Determinations regarding credibility especially are left to the trial court. Id.; see also State v. Wright, 744 P.2d 315, 317 (Utah Ct.App.1987).

Utah Code Ann. § 76-2-402(1) (1978) provides that:

A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such force is necessary to defend himself ... against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or serious bodily injury only if he reasonably believes that the force is necessary to prevent death or serious bodily injury to himself....

Defendant was therefore justified in using deadly force only if (1) she was subject to imminent attack, and (2) she reasonably believed that deadly force was necessary to prevent death or serious bodily injury to herself.

The trial court concluded that defendant did not act in self-defense because there was a “reasonable, substantial cessation” in the hostilities when Mr. Strieby went into the kitchen to pour himself a drink. In reversing this case, my colleagues state that this finding “is not supported by any evidence in the trial record; it is merely the prosecution’s supposition.” Yet defendant herself testified that, during the fight on the stairs, “I kicked him in the groin. I pushed him, and he went into the kitchen.” Whether he fixed a drink or not, I believe the evidence supports the trial court’s finding regarding cessation of hostilities. At that point, given her relative level of intoxication (another factual finding), defendant could have done any number of things to protect herself. Instead, she went upstairs, picked up a loaded revolver, and waited for Mr. Strieby.1

Under these circumstances, there was a basis for the trial court to find that defendant could not have reasonably believed that shooting Mr. Strieby was necessary to prevent her own imminent death or serious bodily injury. I do not believe the court’s finding is clearly erroneous. I would therefore affirm the conviction.

. One of the witnesses of the earlier fight in the trailer testified that as defendant was leaving, “She said as soon as she got her hands on a gun, he was a dead SOB.'” In evaluating all of the evidence, the trial court stated as follows:

There was no physical evidence that Mrs. Strieby had, other than initially, tried any vigorous efforts to escape the condo, to shout, to holler, to seek the assistance of others. There was no evidence in the record to suggest that she had used objects of furniture or anything else in the house to fend him off or to take any evasive action. But rather that she went up the stairs and got the gun at a time when he wasn’t in vigorous, hot pursuit.